Disunification of the States
Most black colonials were colonial-born Englishmen entitled to their liberty under the Treaty of Paris of 1783 as a matter of law. However, the Framers of the U.S. Constitution ratified a color-biased constitution in 1788, codifying the systemic exploitation of 500,000 black Englishmen and their descendants. They first ignored controlling precedent that required purported slave owners to prove their ownership claim and then denied all black colonials fundamental due process of law, effectively preventing them from establishing their liberty rights under the treaty during the 1780s. This is the underpinning of a “perpetual and impassable barrier” between the white and black races, and it was driven by purposeful threats of disunification being constantly hurled by the southern slaveholding states.
The threat of disunity was the primary reason the 500,000 black colonials were denied fundamental due process of law, becoming the cornerstone of America’s slave-based economy. The Americans knew with legal certainty that no pretended American slaveholder could prove an ownership claim of any black colonial under English law, as the Somerset decision declared slavery was not “allowed or approved by the law of the Kingdom.” Furthermore, slaveholding Americans were acutely aware that colonial slavery was a criminal scheme and all colonial slave statutes and racialized slave laws had been legislatively abolished by Parliament’s Declaratory Act of 1766 “for all purposes whatsoever.”
The U.S. Congress and each state legislature adoption of Anglo-Saxon jurisprudence and English law after the Declaration of Independence underscores the claim that the Framers ratified a color-biased constitution. This adoption of English law bound the United States and each state government in the Union during the 1780s to the English Magna Carta of 1215, English precedents, and English common law traditions. Consequently, the slaveholding Americans were legally required to prove their claims of ownership over black colonials under cases like R. v. Stapylton (K.B. 1771) as it found “being black will not prove the property.” However, the Framers of the U.S. Constitution waived and ignored this fundamental due process requirement and instead accepted the unverified claims of white Americans regarding their ownership of black colonials.
Further, the Framers of the U.S. Constitution protected slavery and promoted slave ownership by the Apportionment Clause, Article I, Section 2, Clause 3, called the Three-Fifths Compromise, provided
“for purposes of representation in the House of Representatives and taxation, three-fifth of the enslaved population would be counted.”
This clause was a deal brokered between Southern states, which wanted to count enslaved people fully to increase their representation in Congress, and Northern states, which opposed counting them at all for representation purposes.
The Three-Fifths Compromise increased the representation of slave states in the Electoral College and delivered the presidency to Thomas Jefferson in 1800. Moreover, the slave import limitation, Article 1, Section 9, prohibited Congress from regulating the international slave trade until 1808, 20 years after the ratification of the U.S. Constitution. Not only was Congress forbidden from regulating the transoceanic slave trade, but Article V of the U.S. Constitution explicitly forbids amending the slave import limitation, one of only two such forbidden matters in the whole document.
This color-biased constitution significantly impacted the political power dynamics between the Northern and Southern states, affecting legislative decisions and the balance of power in the federal government until the abolition of slavery in 1865. Support for its color-biased nature was clearly announced in the Supreme Court’s ruling in Dred Scott in 1857, which found that the U.S. Constitution was designed to create a “perpetual and impassable barrier” between the races. Moreover, the Court found:
“[B]lack people] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.”
During the 1850s, Frederick Douglass, abolitionist Wendell Philipps, and Lysander Spooner, who was a lawyer, criticized America’s constitution for institutionalizing U.S. slavery. Further, the Fugitive Slave Act was particularly condemned for mandating the return of escaped black colonials to their enslavers and penalizing those who assisted fugitives. Douglass highlighted how this Act forced free states to participate in the institution of slavery, making the entire nation complicit in the perpetuation of slavery. Spooner further argued that the Act was unconstitutional and morally reprehensible.
In his pamphlet, A Defence for Fugitive Slaves, published in 1850, Spooner contended that the Fugitive Slave Act violated natural law and the principles of justice and liberty enshrined in the Constitution. He believed that individuals had a moral duty to resist the Act’s enforcement and aid fugitive slaves in their quest for freedom. Spooner’s opposition to the Fugitive Slave Act was part of his broader abolitionist stance and his commitment to individual rights and anti-slavery activism.
In January 2015, the plight of Revolutionary War-era black colonials was dramatized in a mini-series called The Book of Negroes. Produced and broadcast by the Canadian Broadcasting Corporation, the series was later rebroadcast in the United States by Black Entertainment Television (BET) in February 2015. The mini-series chronicles an enslaved African who becomes a scribe and other black colonials in the run-up to the British leaving the United States when the American Revolution ends. The series documents the details and circumstances surrounding the 3,000 Black Englishmen who managed to leave the United States with the British in November 1783.
This Canadian production depicts America’s hostilities towards black colonials in the aftermath of the American Revolution and the founding generation’s refusal to honor and abide by the rule of law. It is a historically accurate portrayal of the post-Revolutionary War and pre-U.S. constitutional period in America—and it exposes the hypocrisy of the Founding Generation who denied fundamental due process to 500,000 black Englishmen, enslaved their fellow citizens, and their generational exploitation.
British subjecthood allowed the Founding Generation to choose U.S. citizenship or, by default, become an American citizen if they did not leave the country upon the war’s end. With either choice, white America’s ownership claims of Revolutionary era blacks were legally unsupportable since the U.S. Congress and each state government within the United States adopted Anglo-Saxon jurisprudence and England’s common law.
After the Treaty of Paris was ratified in 1784, various members of Congress received grievances from former colonial slavemasters, now Americans, who claimed they were financially harmed by British General Carleton’s evacuation of 3,000 Black individuals. They argued before the Congress that their constituents had been deprived of personal property in violation of the treaty and that Carleton’s adherence to the British imperial government’s emancipation policy was only an unenforceable “promise” that did not terminate their constituents’ ownership rights. However, these grievances were all unfounded.
The Phillipsburg Proclamation of Emancipation of all black colonials living in the American colonies in June 1779 was supported by English law. Justifying their liberation was the fact that colonial slavery was a legal fiction during colonial times since only the British Parliament had the legislative authority to authorize slavery, and colonial statutes and hereditary slave laws violated each colonial charter. The British Parliament abolished and legislatively repealed all colonial statutes and hereditary slave laws by way of the Declaratory Act of 1766.
Furthermore, Mansfield’s Somerset decision determined that slavery in the Kingdom was unconstitutional since it could only be authorized by “positive law,” a legislative power that only Parliament possessed—but never exercised before the U.S. declared independence in 1776.
Thus, as the Somerset decision was controlling precedent since the U.S. and each state legislature formally adopted English law, disunity became a significant concern for the United States after the Treaty of Paris of 1783 was ratified in early 1784. Disunification was fueled primarily by the southern slave state’s refusal to honor the terms of the Treaty of Paris, which authorized the surrender and release of all British subjects upon ratification of the treaty, and the unwillingness of state governments to afford fundamental due process to the 500,000 black individuals who lived in colonial America.
Presumptively, the America of 1787 also fastened itself to medieval England’s concept of the rule of law, sometimes expressed as “a government of laws, not men.” One may trace the rise of this principle in English history all the way back to the signing of the Magna Carta in the year 1215 when England’s King John found it necessary to guarantee his obedience to English laws.
This doctrine that no man is above the law is applied to kings, legislative bodies, and judges. Sir Edward Coke fiercely resisted not only attempts by King James I to interpret the law but also Acts of Parliament that contravened the common law. Citing Bracton as an authority, he asserted that “the king must not be under any man but under God and the law.”
In Dr. Bonham’s Case, Coke laid down the principle of judicial review, claiming that judges had a right to declare them null and void if they conflicted with established principles of law and justice when interpreting Acts of Parliament. ”And it appears in out books,” said Coke, “that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them utterly void; for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such an Act to be void.”
A major grievance of the northern colonial leadership was that the British had abandoned their own traditions and respect for the rule of law. This sentiment was particularly strong in Massachusetts, where two successive colonial governors vetoed the assembly’s attempts to enact slave emancipation laws in 1773 and 1774. This underscores why Twelve Judges’ determination in the Somerset case in 1772 that slavery was not “allowed or approved by the law of the Kingdom” and can only be lawful by “positive law,” a legislative power which only Parliament possessed was the final “nail in the coffin” for slavery in the American colonies.
Consequently, slaveholding Americans knew black colonials were British subjects and that their English subjecthood would be quickly established under English law. Thus, the United States denied 500,000 black colonials due process of law, and this was driven by the southern slaveholding states and the influence of Thomas Jefferson and others, who in 1776 opposed Congress’ adoption of Anglo-Saxon jurisprudence and English law.
Jefferson championed the legal principle that “a void act does not become good with the passage of time.” This Anglo-Saxon legal principle, immutable and fundamental, is a cornerstone legal axiom today that destroyed America’s narrative that the ownership claims of white Americans were legally valid since colonial slavery was legislatively abolished by the British in 1766 and colonial slavery was never legally authorized by a valid codified colonial law.